Short and Trevilian (No. 5)

[2008] FamCA 317

FAMILY COURT OF AUSTRALIA

SHORT & TREVILIAN (NO. 5) [2008] FamCA 317

FAMILY LAW – CHILDREN – Magellan – Interim proceedings – recent history of matter in previous interim proceedings – matter previously adjourned to allow filing of response and further affidavit material – material now provided – allegations that all three children have been subjected to emotional and psychological abuse – not possible to draw conclusions as to facts in interim hearing – consideration of best interests of the children on interim basis – consideration of report previously provided by child psychologist, further material filed and recent events – in the interim the children are at risk of psychological and emotional harm by being separated from each other and the parents - best interests of the children that current orders remain pending trial.

Family Law Act 1975 (Cth) s 60CC

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Short

RESPONDENT: Mr Trevilian

OTHER PARTY: Minister for Families and Communities

INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

FILE NUMBER: ADF 1855 of 2003

DATE DELIVERED: 23 April 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 23 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.M. Berman

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy

THE RESPONDENT: In person

COUNSEL FOR THE OTHER PARTY: Mr M.J. Figwer

SOLICITOR FOR THE OTHER PARTY: Michael J A Figwer

INDEPENDENT CHILDREN’S LAWYER: Judith Cocks

INDEPENDENT CHILDREN’S COUNSEL: Ms J Cocks

Orders

1. The wife has leave to file an Amended Application for Final orders PROVIDED the same is filed and served within fourteen [14] days from this date.

1. The husband has leave to file a Response to the Amended Application for Final Orders PROVIDED the same is filed and served within fourteen [14] days of the service of the amended application upon him.

IT IS ORDERED PENDING TRIAL OF THE MATTER THAT

1. Any orders concerning the father spending time with or communicating with the child S born on … July 1992 are suspended.

1. The husband is restrained and an injunction is granted restraining him from communicating with S by any means, spending any time with S in any way or from approaching or remaining within two hundred [200] metres of S.

1. The child S be enrolled as a boarder at, reside at and be accommodated by S College or at such other place as the husband and wife shall agree in consultation with the Independent Children’s Lawyer and the Minister’s representative.

1. The parties each pay one-half of the fees associated with S’s boarding arrangements at S College or such other accommodation arrangements as agreed.

1. Pursuant to s.65DA (2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Short v Trevillian is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1855 of 2003

MS SHORT

Applicant

And

MR TREVILIAN

Respondent

REASONS FOR JUDGMENT

1. Orders have already been made by me providing for the contravention and contempt proceedings to be heard in June and for the final orders applications in relation to the children to be listed before his Honour Burr J at 2.15 pm on 8 July.  It is anticipated that that will be the first day of trial or directions to arrange for the matter to be listed for a long trial, either before his Honour Burr J or other available judicial officer.  I regret to say that the reduced judicial availability in the court is such that it is highly unlikely that there is any possibility of the matter being listed for trial at an earlier date.

2. I turn now to consideration of the applications currently before me by way of interim orders; namely, the application in a case filed by the mother on 2 April 2008 and the application in a case filed by the father on 18 April 2008. 

3. I will not repeat the background to the proceedings before the court.  That background is set out in some detail in the reasons for judgment of his Honour Burr J after hearing the interim proceedings, and more recently, in a summary way, by me in my reasons for judgment in the most recent applications which have come before the court.

4. The recent history of the matter is however important.  I refer to the reasons I provided in this matter when it came on before me on 25 March 2008, setting the scene of the orders that were made on that occasion. At that time the respondent was represented by Ms Lewis, having had solicitors Tindall Gask Bentley continuing to act for him at that time.  The mother was represented by Ms Ferdinandy, Mr Figwer appeared for the Minister and the Independent Children's Lawyer was represented by Mr McGinn. 

5. I made detailed orders at that time and gave reasons for the orders on that occasion.  The orders on 25 March included:

   That the father was restrained, and an injunction was granted restraining him, from spending any time with or in the company of [S] save and except under the supervision of the staff of [S College] or during the school holidays under the supervision of a suitable person agreed to by the mother, father and the Independent Children's Lawyer. 

6. S had been previously ordered to reside as a boarder at S College. 

7. The matter then further came on before me, when orders were made by way of procedural orders.  I directed that the matter be adjourned for hearing before me on 26 April 2008, suspending certain orders in relation to S spending time with the father and making other interim orders.

8. When the matter came before me on 16 April the father appeared in person.  I extended the time for him to file a response and affidavit material in relation to the application in a case filed by the mother which was then before me.  I continued the interim orders.

9. The matter now comes on before me and further material has been received.  In particular, I have the affidavit of the father filed on 18 April 2008, an affidavit of the mother provided today being an affidavit sworn on 22 April 2008, and an affidavit of Ms C, a supervisor of the Families SA intake and assessment team.

10. I have heard detailed submissions from counsel for the mother, the father in person, Mr Figwer representing the Minister and the Independent Children's Lawyer Ms Cocks.  The material to a large extent contains factors which are in dispute.  The significant material, however, indicates that there are allegations by both mother and father that the three children, S, V and to a lesser extent the youngest child E, have been subjected to emotional and psychological abuse. 

11. It is not possible, in the assessment of the evidence by way of an interim hearing, to draw conclusions as to which set of facts is the truth.  On that basis the Court has to make a decision based upon the facts which can be gleaned which are otherwise not in contention, and place reliance, to a large extent, upon that material and the evidence of independent persons.

12. The allegations in relation to S have been summarised in Burr J's recent judgment and to a lesser extent in my recent judgments.  The allegations in relation to F have been dealt with at length by the husband in his affidavit by way of comment.  He says that he was profoundly shocked to hear for the first time, from Ms J’s reports, that V had self-mutilated. He then refers to conversations he has had with other persons connected with the school, and provides a checklist which he completed at the request of Ms J in relation to V.

13. The father also refers in his affidavit, under the heading “Relationship with [S]” to steps undertaken in respect of her achievements, both academically and socially.  He refers to the assistance he has given to S.  He also refers in his affidavit to the criticism of the mother's ability to care for V.  He concludes that the mother is not capable of providing appropriately for V and says that:

    “[V] would be much safer in the Boarding House where -

    a)         she can re-bond with [S],

    b)[V] may catalyse a rapprochment between [S] and her mother,

    c)competent and attentive staff and counsellors can monitor her self-destructive propensities, thereby hopefully curtailing them.”

14. The affidavit of the father does not address the allegations of the mother in relation to his behaviour after the orders of the court in relation to S residing in S boarding house and having only supervised contact with him. 

15. That affidavit may not raise those matters, possibly because I warned the father on the last occasion that he needed appropriate independent legal advice, to guard against any difficulties which might arise in an affidavit in relation to the interim proceedings affecting his position in relation to the contempt and contravention proceedings.  However, the affidavit itself does not give that explanation.  The affidavit in response does not address the allegations of the mother.

16. In any event, I am required to consider on an interim basis all of the factors which are necessary in order to determine what interim order is in the best interests of all three children.  The case of Goode and Goode (2006) FLC 93-286 sets out the steps which need to be taken in the interim hearings. However, in this particular case the emphasis clearly has to be on the primary considerations set out in section 60CC(2); namely:

    The benefit to the child of having a meaningful relationship with both of the child's parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

17. It is currently not proposed that there be any alteration to the orders so far as they relate to the youngest child.  The mother proposes that the orders in relation to all three children remain as they currently are.  Namely, that S reside at S College and that the father be restrained from having any contact or communication with her pending the resolution of the trial, and that the younger children continue to reside with her and have no communication with, or spend time with, the father.

18. These are obviously significant orders as they impact upon the children's capacity to have a relationship with both of their parents and in particular with the father. 

19. In relation to paragraph 60CC(2)(a), however, it is necessary to consider the emphasis placed in that section on the word "meaningful" and the need to understand that in the context of the best interests of the child.  In relation to 60CC(2)(b), the emphasis is placed upon the need to protect children from physical or psychological harm.

20. In the interim period, it is clear to me that the children are at risk of psychological harm and emotional harm by being separated from one or other of the parents, or both, and from being separated from what would be called normal sibling interaction.

21. I have to take into account also, as additional considerations, the views expressed by the child and the factors that might be relevant to those.  In that regard I have the affidavits of the parties, expressing what they consider to be the views of the children, and the report of Ms J which is annexed to the affidavit of Mr Figwer filed on 25 March 2008.  I take into account that report.  I also take into account the conclusions in that report expressed by Ms J and the recommendations she makes.  The final conclusions and opinions of Ms J need to be tested by way of final hearing, when the allegations made by the father as to the quality and reliability of the report can be tested.

22. The report refers on pages 29 and 30 to two matters of considerable concern relating to the emotional wellbeing of the children and the impact on the psychological and emotional health of the children by the failure of the parents to protect the children from the ongoing disputes between them.

23. In particular, I am concerned that the ongoing conflict between the parties, and indeed this ongoing litigation, is having an impact upon the emotional and psychological welfare of the children or is certainly putting that at risk.  It appears that the ongoing dispute is directly putting at risk the children's ability to get on with their own lives, unhindered by the problems caused by their parents' poor relationship.

24. At this stage it is not appropriate to determine, on the current state of the contested facts, who is responsible for that.  However, it is my conclusion, bearing in mind parts of Ms J’s report (and indeed the affidavit material which has been filed by the father, mother and the affidavit of Ms C) that the children need to be protected from the further impact of the ongoing conflict.

25. The serious allegations in relation to the risks to V appear to have been raised by the mother in her interview with Ms J, and the affidavits of the mother and Ms C indicate that she has taken appropriate steps for V to receive the assistance of a suitably qualified independent child psychiatrist.

26. Taking into account recent events and in particular in relation to V’s welfare, the affidavit of Ms C, I am satisfied that it is in V’s best interests that she continue to reside with the mother and younger sister E whilst the issues concerning her are determined. 

27. I am therefore not satisfied that it is in V’s best interests to remove her from the home of the mother and place her in the boarding school at S College at this stage.  I take into account, however, that these are matters which will have to be determined by the judge who hears the final proceedings.

28. In relation to S’s ongoing placement, apparently negotiations are taking place to arrange for S to move from the boarding house to the home of a teacher at the school, under a home-stay arrangement.  In view of the negotiations taking place, it is appropriate to vary the order which was made to allow S to reside either as a boarder at S College or at any other accommodation which may be agreed between the mother and the father and in consultation with the Minister's representative and the Independent Children's Lawyer.

29. In relation to ongoing time to be spent between S and the father or communication between S and the father, I refer to my reasons given most recently in relation to that issue. The affidavit of the father does not deal with the concerns raised by the mother about the father's capacity to set aside his interests in this matter and comply with the orders of the Court in the spirit in which they have been made. I am not satisfied that the absence of any explanation has been appropriately dealt with.

30. The child S is apparently progressing well at the present time, in relation to her schooling activities.  It appears that it is not disputed that S was removed from S College on the afternoon of the orders that were made and subsequently returned only after further orders were made by me.  I am concerned about the capacity of the father to provide for the emotional needs of S and his attitude to the responsibilities of parenthood demonstrated by him.

31. I have weighed up the nature of the relationship of all of the children with each of the parents in this difficult matter.  One of the significant issues which will need to be determined is the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between each of the children and the other parent.

32. Considering the nature and extent of the disputed evidence before me at the moment, and again referring to the previous decisions which I have made, I am satisfied that it is in the best interests of the children that the current orders remain, save and except for a variation to permit the parties to come to a suitable agreement in relation to S’s future accommodation.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  23 April 2008